Citation Nr: 18156828 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-62 235 DATE: December 11, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT The most competent, credible, and probative evidence of record demonstrates that the Veteran’s service-connected bilateral hearing loss and anxiety disorder are of such nature and/or severity as to prevent him from securing or following any substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1975 to February 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). TDIU The Veteran contends that he is entitled to a TDIU based upon his service-connected hearing loss and anxiety disorder. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. However, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Historically, the Veteran submitted a freestanding claim (VA Form 21-8940) for a TDIU in May 2014. He indicated that he completed two years of college and obtained an Associate of Applied Science (AAS) degree in Chemical Engineering Technology. He indicated that his service-connected hearing loss and anxiety prevented him from securing or following any gainful occupation. He indicated that he last worked full-time on September 23, 2013, and became too disabled to work since that date. Prior to that date he worked at various companies as an Information Technology (IT) Project Manager. The Veteran is service-connected for anxiety disorder, rated as 50 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 30 percent disabling. His current combined rating is 70 percent and he meets the schedular rating requirements for assignment of a TDIU. 38 C.F.R. § 4.16(a). The remaining question is whether he is unemployable due to his service-connected disabilities. The Veteran submitted a statement dated in May 2014 and indicated that he was unable to maintain substantially gainful employment as a result of his service-connected disability. He noted that he worked as a Professional Project Manager which required him to hear in adverse conditions and record the contents of all conversations in the meetings that he facilitated. He reported that he was laid off from various jobs when it became evident that his hearing impacted his ability to perform his job. The Veteran stated that he had difficulty hearing during the interview process when trying to obtain new jobs and when he obtained employment it was short term and did not lead to long term employment with benefits. He stated that he spent the prior six months conducting a job search and sent out over one thousand applications, had one hundred telephone interviews, and had twenty in-person interviews and was unable to obtain employment. At a September 2014 VA audiological examination, the Veteran was assessed with bilateral sensorineural hearing loss. The examiner indicated that the Veteran’s hearing loss alone should not be a barrier to a wide range of employment settings. She reported that many individuals with the Veteran’s degree of hearing loss or worse function well in many occupational settings. She noted that the Veteran was a good candidate for amplification. However, she specifically found that the Veteran’s hearing loss would cause some problems depending on the vocation and he could have trouble working well in very noisy environments and in environments that required him to often use non-face-to-face communications equipment (such as speakers, intercoms, telephones, etc.), or jobs which required a great deal of attention to high pitched sounds (such as monitoring equipment or other beeps and pings). At a September 2014 VA psychiatric examination, the examiner indicated that given the Veteran’s difficulty managing stress/anxiety and tendency to become easily overwhelmed associated with his service-connected anxiety, he would likely benefit from a flexible work environment where he could leave for short periods of time to calm his nerves as necessary. The examiner stated that the Veteran’s reported low frustration tolerance and occasional irritability when anxious/stressed would likely inhibit his ability to serve in a position requiring frequent or prolonged contact with the general public. A private audiologist A. Dinesh, Ph.D., FAAA, CCC-A, submitted an opinion in September 2017 and indicated that the Veteran had severe hearing loss and his ability to understand diminished with increased background noise. The examiner recommended that the Veteran wear his hearing aids and avoid loud noise exposure. The Veteran submitted a statement from a former supervisor, [redacted], in May 2018. Mr. [redacted] reported that he worked with the Veteran from 2000 to 2003. He stated that the Veteran was responsible for managing project team communications in meetings and other office settings. He noted that the Veteran’s hearing impairment was reflected in his inability to follow conversations and take accurate notes. He indicated that he observed that the Veteran’s hearing loss adversely impacted his ability to perform at the expected level of the position. The Veterans submitted a lay statement from [redacted] in May 2018. Mr. [redacted] indicated that he was a contractor assigned to the Veteran’s team of IT Project Managers and they worked together from June 2011 to March 2013. He indicated that one of the Veteran’s main responsibilities was to facilitate project team meetings and send out meeting recaps. He stated that he observed the Veteran having difficulty communicating with his team due to his hearing difficulties. Mr. [redacted] reported that despite placing the Veteran in the middle of the room and adjacent to a speaker phone, he continued to express difficulty following conversations and had to frequently ask people to repeat themselves. He concluded that the Veteran’s hearing condition adversely impacted his ability to perform at he expected level of his position. The Veteran submitted a favorable decision from the Social Security Administration (SSA) which indicates that the Veteran was awarded SSA disability benefits effective from August 27, 2014, due to severe hearing loss among other disabilities. The decision specifically pointed to the VA audiology examination which found that the Veteran would have difficulty working in noisy work environments or in work requiring verbal communication by electronic means. Given the Veteran’s level of hearing loss combined with the severity of his anxiety disorder; given his specific education and training; given his previous failed work attempts; and resolving any reasonable doubt in his favor, it is reasonable to conclude that his service-connected disabilities currently preclude him from performing substantial gainful employment. Accordingly, assignment of a TDIU is warranted. 38 C.F.R. § 4.16(a). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel